After nearly 40 years without addressing the issue, the appeals court held that in evaluating fee awards a lower court should consider the public benefit in the case, commercial benefit to the plaintiff, the nature of the plaintiff’s interest in the records and the reasonableness of the agency’s withholding. The four-part federal test stems from the 1992 caseTax Analysts v. United States Department of Justice decided by the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. FOIA is modeled after the federal law and both grant discretion to the trial court in awarding attorney’s fees “where such awards promote the open-government objectives of the statute,” Judge Catharine Easterly wrote for the court. To overturn a fee award denial, an appeals court must find the lower court abused its discretion in denying the fees.

In this case, the Fraternal Order of Police sued for emails containing the word “union” or the name of the union chairman – a “blunderbuss demand” but “wholly appropriate” request, according to the opinion. Reviewing the lower court’s application of the four-part test, the appeals court did not find that the trial court abused its discretion in denying fees to the police union.

The court agreed the first three factors cut against the union’s position because the information requested “did not provide a concrete public benefit.” And while there was no obvious commercial benefit, the request was in the union’s self interest, the opinion said.

The fourth factor, however, weighed strongly in favor of the union. “It is undisputed that the government had no reasonable basis in law for withholding from the FOP the thousands of documents it ultimately produced.... the District’s behavior in this case is precisely the type of behavior the fees provision is intended to discourage,” Easterly wrote for the unanimous panel.

Despite that, she said, “it was not an abuse of discretion for [the trial court] to conclude that obduracy alone was not enough to justify an award of fees in this case.

While the D.C. Superior Court will continue to award attorney’s fees in D.C. cases at its discretion, this four-part test will now formally serve as the criteria for those determinations.